The crime of Menacing occurs when a person knowingly places another person in fear of imminent serious bodily injury. In order to prove the crime of felony Menacing, the prosecutor must prove:
1. That the defendant knew that what he or she was doing was going to cause fear. For example, if a hunter takes a gun out of his car and someone nearby becomes fearful that they are going to be injured, this is not Menacing, since the hunter did not know and intend for his actions to cause fear.
2. The threat of injury must be “imminent,” which means right now. If the defendant makes a threat to do harm sometime in the future, then this is not an imminent threat, and is, therefore, not Menacing under Colorado law.
3. The injury that is threatened is serious. For example, it is not Menacing if you tell someone that you are going to slap them.
4. That there was a weapon, or threat of a weapon, involved in the incident. The weapon can be either real, or fake. For example, a person can commit felony Menacing using a toy gun, if the toy gun is used in a way that makes the victim of the crime believe that it is real. It can be a felony even when there is no weapon actually present at all, if the defendant says something that makes the victim believe that there is a weapon present. For example, if the defendant tells the victim “Okay, now I’m going to shoot you,” this can be felony Menacing even if there is no gun present.
The threat of injury that amounts to Menacing can occur by way of a gesture or actions, or it can instead occur by way of verbal threat. In other words, the threat can be a result of someone pointing a gun at someone else, or it can come as a result of someone saying “I’m going to shoot you.”
Many felony Menacing charges arise out of road-rage incidents. Kevin Churchill has handled numerous cases involving the brandishing of a handgun, either while vehicles are in motion on the highway, or during disputes over parking spots, etc.
Felony Menacing Penalties
Felony Menacing is a class 5 felony in Colorado. It carries a presumptive prison sentence of from 1 to 3 years in the Colorado Department of Corrections. If the court were to find extraordinary aggravating circumstances existed in the case, the court could increase the maximum prison sentence to 6 years. Any sentence to prison will be followed by a mandatory 2 years of parole. While there is a possible fine of up to $100,000 for this charge, fines are rarely imposed for this type of offense. Probationary sentences, rather than prison, are possible for this charge.
Advanced Information Regarding Colorado Felony Menacing
1. As with most criminal offenses, one of the elements the prosecutor must prove is that the defendant had the required mental state, or thoughts, to be guilty. As in the example above, where the hunter is unaware that removing the gun from his vehicle is placing someone nearby in fear, he is not guilty of Menacing because he is not “knowingly” causing the fear. What is important to note about this is that the state of mind of the victim, specifically, whether the victim was in fear, is not an element that must be proven at all. What must be proven is that the defendant specifically intended to cause fear. For example, a person could be guilty of Menacing even when the victim was unaware of the threat. If the defendant had pointed a rifle at the victim hoping that the victim would see it and be in fear of serious injury, but the victim never saw it (and therefore never felt fear), the defendant is still guilty under Colorado law. In cases where the victim did in fact experience fear, the prosecutor can use that as supporting evidence that the defendant intended to cause fear.
2. It is not necessary that the weapon be pointed at the victim. The jury is allowed to find that simply holding the weapon in another person’s presence was sufficient to find someone guilty of felony Menacing.
3. It does not matter if the weapon was not loaded. The actual ability to cause injury is not the question. The question is, was the weapon used with the intent to cause fear. For example, if the defendant knows the weapon is not loaded, but he knows that the victim may believe that it is loaded, the defendant is still guilty of Menacing.
4. The “deadly weapon” can be the defendant’s hands, or even a disease. A Colorado case included the facts that a man told the victim that he (the defendant) was HIV positive. The defendant then proceeded to scratch and bite the victim, intending to cause fear of infection. He was found guilty of Menacing.